CENT. RADIO CO., INC. ET AL. v. CITY OF NORFOLK, VA., NO. 13-1996, 13-1997

Decided: January 29, 2016

The Fourth Circuit dismissed the appeal in part, affirmed in part, and reversed in part the judgment of the district court.

In this case, the district court granted summary judgment to the City of Norfolk (“Norfolk”) on plaintiffs’ claims that the City’s sign ordinance violated the plaintiffs’ rights under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The plaintiffs, Central Radio Company (“Central Radio”), Robert Wilson (“Wilson”), and Kelly Dickinson (“Dickinson”), argued that Norfolk’s sign ordinance unconstitutionally “exempted certain displays from regulation, effectuated a prior restraint on speech, and was enforced selectively in a discriminatory manner by zoning officials.” The plaintiffs’ challenges to Norfolk’s sign code relate to a protest of certain adverse actions taken against Central Radio by the Norfolk Redevelopment and Housing Authority (NRHA). In May of 2012, the plaintiffs initiated a civil action to enjoin the City from enforcing the former sign code. The plaintiffs claimed that the sign code was unconstitutional. The district court denied the plaintiffs’’ subsequent motions and granted summary judgment in favor of Norfolk. The court determined that the provisions of the former sign code exempting flags, emblems, and works of art were content-neutral. As a result, the court then applied intermediate scrutiny and held that the former sign code was a constitutional exercise of Norfolk’s regulatory authority.  

On appeal, the Fourth Circuit found that the resolution of whether or not the sign ordinance was content-neutral or content based should be guided by the United States Supreme Court’s recent decision in Reed v. Town of Gilbert, 134 S. Ct. 2218 (2015). After applying the relevant principals of content neutrality found in Reed, the Court held that the sign ordinances challenged in the plaintiffs’ complaints were content-based regulations. “On its face, the sign code was content-based because it applied or did not apply as a result of content, that is, ‘the topic discussed or the idea or message expressed.’” As a result of the sign ordinance being content-based regulation of speech, the Court applied strict scrutiny in determining its constitutionality. The Court found that the sign ordinance failed strict scrutiny because Norfolk failed to satisfy its burden of proving that its restriction of speech was narrowly tailored to further a compelling government interest. Accordingly, the Court concluded that the sign ordinance failed strict scrutiny, and as such was unconstitutional under the First Amendment. The Court remanded the First Amendment claim to the district court to award nominal damages to the plaintiffs or any other relief. Further, the Court found that because Norfolk amended the sign ordinance in 2015 after the Supreme Court’s decision in Reed, that the plaintiffs’’ request for prospective relief based on the content restrictions in the prior ordinance was moot. The Court noted that on remand the district court has the option to consider whether the plaintiffs may bring a new claim challenging the constitutionality of the amended ordinance and seek any associated injunctive relief.

The Court, however, found no merit in the plaintiffs’ selective enforcement claim, and therefore, the Court affirmed the court’s disposition of that claim.

Full Opinion

Meredith Weisler

 

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